Probate – Upon Death – The Nguyen Law Firm

What Happens Upon Death?

What happens when a person dies without a Will?

If a person dies without a Will, it will be necessary to prove to a court who are the rightful heirs of an estate. This usually will involve a proceeding called a determination of heirship. It will be necessary to bring witnesses to the court so they may testify as to the family relationships of the deceased person. This can be one of the most costly ways to distribute an deceased’s estate because of the needed attorney time and the extra court involvement. Additionally, there are costs for a court appointed attorney ad litem to represent the interest of any unknown heirs.

As to who will receive the estate, this issue can range from rather simple to very complicated, depending on the deceased’s person’s family situation. For example, if a person dies with a spouse but no children, the estate will most likely go to the spouse. Issues that can complicate this determination include if the deceased person has children from a person other than a current spouse, if there are adopted children, or there are no immediate or very close family relatives. Clearly each person’s situation is different and would have to analyzed individually.

What if there are disagreements about the terms of a Will or the validity of a Will is questionable?

Either of these situations is likely to lead to a contested court matter involving extensive litigation and increased costs.

When the terms of a Will are not clearly written, it may be possible to interpret the distributions directed by the Will in more than one manner. When this happens, it will be necessary to request that a court determine what manner of distribution is to be used. Additionally, a Will must be validly executed. In Texas there are a number of requirements for the formal procedures of executing a Will. For example, if the Will is not handwritten by the person making the Will, it will need to be witnessed by two competent people. If such formal procedures are not followed correctly, the Will is not valid.

Additionally, there are other requirements for executing a Will that involve a persons mental state such as the persons capacity to understand the effect of executing a Will and the exertion of outside influences on the person that cause the person to execute the Will. These are also grounds that can be used to show that a Will is not a valid Will.

Regardless of the grounds for challenging the terms of a Will, the process is likely to involve lengthy litigation and significant attorney fees.

What happens when a Will is not a valid Will?

If a Will is found to be invalid, on grounds such as those listed above, the court cannot and will not follow the terms of distribution set out by that Will. There are generally two options at that point. Either, a previous Will may be used to determine the distribution of the estate or the estate will be distributed as if a Will was never executed. Determining which option will be used is a very fact specific process. Therefore, the results will vary depending on a person’s specific situation.

What happens when a person dies with a Will?

If a person dies with a valid Will, the estate will be distributed according to that person’s wishes as expressed in the Will. The procedure may or may not involve extensive court involvement. When the Will is drafted, the Will can call for either a dependant or independent administration. Under a dependant administration, court approval is required for most actions involving the estate. Under an independent administration, this close court supervision is not necessary.

Under both types of administration, however, it will be necessary to prove to a court that the Will is valid. If, in addition to the Will, a self-proving affidavit was executed, then this procedure is quite simple and requires a minimal amount of testimony. Without, a self-proving affidavit, the testimony of a witness to the Will is required to prove the validity of the Will. Either way, so long as the appropriate witnesses can be located, this process is generally less complicated than that involved in a determination of heirship, when there is no Will.

Are there alternatives to a full heirship or Will probate proceeding?

Yes, there are alternatives that may be available depending the size of the estate and the type of property involved. Generally, the smaller the estate, the more likely that there will be an available alternative. The advantage to these alternatives is that they often are less costly and take less time when compared to an heirship proceeding or Will probate proceeding. The limitation is that only certain estates will qualify for the alternative options.

What if there are disagreements about who are the heirs of a person?

If it is unclear or if there is a dispute about who the heirs are of a deceased person it will be necessary to contest the issue in court. Some possible reasons that may make a contest necessary include complicated family relationships such as multiple children of various marriages, common law marriages, adopted children, and other similar issues.

No matter what the source of the disagreement is, the process is likely to be complicated and time consuming and an attorney can help a person navigate this process.